Free Order Dismissing Case - District Court of California - California

Case 3:07-cv-02939-SC

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1 Muriel B. Kaplan, Esq. (SBN 124607) Michele R. Stafford, Esq. (SBN 172509) 2 SALTZMAN & JOHNSON LAW CORPORATION 120 Howard Street, Suite 520 3 San Francisco, CA 94105 (415) 882-7900 4 (415) 882-9287 ­ Facsimile [email protected] 5 [email protected] 6 Attorneys for Plaintiffs 7 8 9 10 11 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case No.: C07-2939 SC NOTICE AND ACKNOWLEDGMENT and JUDGMENT PURSUANT TO STIPULATION

12 BAY AREA PAINTERS AND TAPERS 13 PENSION FUND, BAY AREA PAINTERS AND TAPERS HEALTH FUND, BAY AREA 14 PAINTERS AND TAPERS JOINT APPRENTICESHIP TRAINING FUNDS, 15 AND THEIR JOINT BOARDS OF TRUSTEES; FRED INMAN AND CHARLES 16 DEL MONTE, AS TRUSTEES; AND DISTRICT COUNCIL 16 OF THE 17 INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES; 18 Plaintiffs, 19 v. 20 ACOUSTI-CON, INC., 21 Defendant. 22 23 24

IT IS HEREBY STIPULATED by and between the parties hereto, that the Judgment may

25 be entered in the within action in favor of the plaintiffs and against defendant ACOUSTI-CON, 26 INC., as follows: 27 28
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Case 3:07-cv-02939-SC

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1.

Defendant entered into a valid collective bargaining agreement with the District

2 Council 16 of the International Union of Painters and Allied Trades (hereinafter "Bargaining 3 4 5 6 7 2. Richard Fabrizio, President of Acousti-Con, Inc., hereby acknowledges that he is Agreement"). This Bargaining Agreement has continued in full force and effect to the present time.

authorized to receive service and has received the following documents in this action: Summons;

8 Complaint; Dispute Resolution Procedures in the Northern District of California; Order Setting 9 Initial Case Management Conference; Standing Order; Notice of Availability of Magistrate Judge 10 to Exercise Jurisdiction; Instructions for Completion of ADR Forms Regarding Selection of ADR 11 12 Phone Conference; ADR Certification by Parties and Counsel; ECF Registration Information 13 14 15 Handout; Welcome to the U.S. District Court, San Francisco. 3. Defendant has become indebted to the Trust Funds for amounts due and owing Process; Stipulation and [Proposed] Order Selecting ADR Process; Notice of Need for ADR

16 under the terms of the Collective Bargaining Agreement and Trust Agreements as follows: 17 18 19 20 21 22 23 24 25 26 27 /// 28
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Shortages on C. Anguiano contributions (4/06-11/06) 10% Liquidated Damages 7% Interest per annum (through 5/31/07)

$10,634.81 $1,063.48 $644.70 $12,342.99

Shortages on H. Campa contributions (8/06-11/06) 10% Liquidated Damages 7% Interest per annum (through 5/31/07)

$6,266.88 $626.69 $308.41 $7,201.98

4/07 liquidated damages / interest Attorneys Fees (5/18/07-6/5/07) TOTAL

$1,246.62 $850.00 $21,641.59

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4.

Defendant shall conditionally pay the amount of $19,951.42 (the total, less

2 $1,690.17 in liquidated damages) upon Trustee approval and timely compliance with all of the 3 4 5 6 7 pay to plaintiffs $1,727.00 per month. Defendant shall have the right to increase the monthly payments at any time, and can be made by joint check, endorsed by defendant prior to submission terms of this Stipulation as follows: Beginning on June 20, 2007, and continuing on or before the 20th of every month thereafter for a period of 12 months (through May 20, 2008), defendant shall

8 to plaintiffs. 9 (a) Payments shall be applied first to unpaid interest at the rate of 7% per

10 annum on the unpaid principal balance, in accordance with plaintiffs' Trust Agreements. 11 12 and delivered to Michele R. Stafford, Saltzman & Johnson Law Corporation, 120 Howard Street, 13 14 Suite 520, San Francisco, CA 94105 on or before the 20th of each month as stated above, or to (b) Payments shall be made to the Bay Area Painters and Tapers Trust Funds,

15 such other address as may be specified by plaintiffs. In the event that any check is not timely 16 submitted or submitted by defendant but fails to clear the bank, or is unable to be negotiated for 17 any reason, this shall be considered to be a default on the Judgment entered. If this occurs, 18 plaintiffs shall make a written demand to defendant to cure said default. Default will only be 19 20 Corporation within seven (7) days of the date of the notice from plaintiffs. If defendant elects to 21 22 cure said default, and plaintiffs elect to accept future payments, all such payments shall be made cured by the issuance of a replacement, cashier's check, delivered to Saltzman and Johnson Law

23 by cashier's check. In the event default is not cured, all amounts remaining due hereunder shall be 24 due and payable on demand by plaintiffs. 25 26 27 28
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(c)

At the time that defendant makes its 11th payment, defendant may submit a

written request for waiver of liquidated damages directed to the Board of Trustees, but sent to

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1 Saltzman and Johnson Law Corporation with the 11th payment. Defendants will be advised as to 2 whether or not the waiver has been granted prior to the final payment hereunder. 3 4 5 6 7 thereafter until this judgment is satisfied, defendant shall remain current in contributions due to plaintiffs under the current Collective Bargaining Agreement and under all subsequent collective 5. Beginning with contributions due for hours worked by defendant's employees

during the month of May 2007, to be postmarked no later than June 20, 2007, and for every month

8 bargaining agreements, if any, and the Declarations of Trust as amended. Defendant shall fax a 9 copy of the contribution report for each month, together with a copy of that payment check, 10 to Michele R. Stafford at 415-882-9287, prior to sending the payment to the Trust Funds. 11 12 obligations under this agreement and the provisions of Paragraph 9 shall apply. Any such unpaid 13 14 or late paid contributions, together with 10% liquidated damages and 7% per annum interest Failure by defendant to remain current in its contributions shall constitute a default of the

15 accrued on the total contributions and liquidated damages, shall be added to and become a part of 16 this Judgment and subject to the terms herein. Plaintiffs reserve all rights available under the 17 applicable Bargaining Agreement and Declarations of Trust of the Trust Funds for collection of 18 current and future contributions and the provisions of this agreement are in addition thereto. 19 20 certified payrolls in connection with each and every project for which they are kept, including but 21 22 23 not limited to public works and prevailing wage jobs. 7. It is further stipulated and agreed that Richard Fabrizio (hereinafter referred to as 6. It is agreed that defendant shall provide to Michele R. Stafford copies of all

24 "guarantor") of Acousti-Con, Inc., shall personally guarantee payment of the amounts owed by 25 defendant to the plaintiffs, under the terms of this Stipulation. In consideration of the terms of this 26 27 28
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Stipulation, defendant, and guarantor, submit herein to the jurisdiction of this Court and stipulate to the terms set forth herein for any additional payments due to plaintiffs pursuant to paragraphs 4

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1 and 5 herein. 2 3 4 5 6 7 Said amount shall be paid with the last payment, on or before May 20, 2008. In the event that the requested waiver of liquidated damages is not granted, this amount shall be included and paid with 8. Prior to the last payment pursuant to this Stipulation, plaintiffs shall advise

defendant/guarantor, in writing, of any additional amounts owed pursuant to the Stipulation, which shall include, but not be limited to, any additional attorneys fees and costs incurred in this matter.

8 the final payment hereunder. 9 9. In the event that defendant/guarantor fail to make any payment required under

10 Paragraph 3 above, or fail to remain current in any contributions under paragraph 5 above, then, 11 12 payments received by Plaintiffs, but increased by any unpaid contributions then due, plus 10% 13 14 liquidated damages and 7% per annum interest thereon as provided in above paragraph 5 shall be (a) The entire balance of $21,641.59 plus interest, reduced by principal

15 immediately due, together with any additional attorneys' fees and costs under section (d) below. 16 (b) A writ of execution may be obtained against defendant and guarantor

17 without further notice, in the amount of the unpaid balance, plus any additional amounts under the 18 terms herein, upon declaration of a duly authorized representative of the plaintiffs setting forth any 19 20 date of default. Defendant and guarantor specifically consent to the authority of a Magistrate 21 22 Judge for all proceedings, including, but not limited to, plaintiffs' obtaining a writ of execution payment theretofore made by or on behalf of defendant and the balance due and owing as of the

23 herein. 24 (c) Defendant/guarantor waive notice of entry of judgment and expressly waive

25 all rights to stay of execution and appeal. The declaration or affidavit of a duly authorized 26 27 28
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representative of plaintiffs as to the balance due and owing as of the date of default shall be sufficient to secure the issuance of a writ of execution.

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(d)

Defendant/guarantor shall pay all additional costs and attorneys' fees

2 incurred by plaintiffs in connection with collection and allocation of the amounts owed by 3 4 5 6 7 guarantor as provided herein in the event of any breach of the provisions of this Stipulation shall not be deemed a waiver of any subsequent breach by the defendant or guarantor of any provisions defendant to plaintiffs under this Stipulation. 10. Any failure on the part of the plaintiffs to take any action against defendant or

8 herein. 9 11. Plaintiffs specifically reserve all rights to bring a subsequent action against

10 defendant or guarantor for the collection of any additional contribution delinquencies found to be 11 12 specifically waives the defense of the doctrine of res judicata in any such action. 13 14 /// due for the hours worked during the periods preceding the date of this Stipulation. Defendant

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12.

In the event of the filing of a bankruptcy petition by defendant or its guarantor, the

2 parties agree that any payments made by defendant or guarantor pursuant to the terms of this 3 4 5 6 7 Section 547 or otherwise. Defendant and its guarantor nevertheless represent that no bankruptcy filing is anticipated. ACOUSTI-CON, INC. judgment, shall be deemed to have been made in the ordinary course of business as provided under 11 U.S.C. Section 547(c)(2) and shall not be claimed by defendant as a preference under 11 U.S.C.

8 Dated: June 21, 2007 9 10 11 12 Dated: June 21, 2007 13 14 15 16 Dated: June 21, 2007 17 18 19 20 21 IT IS SO ORDERED. 22 23 Dated: June 29, 2007 24 25 26 27 28

By:____________/s/_________________ Richard Fabrizio, President

RICHARD FABRIZIO

________________/s/________________ Personal Guarantor

SALTZMAN & JOHNSON LAW CORPORATION

By:______________/s/_______________ Michele R. Stafford Attorneys for Plaintiffs

_______________________________________ UNITED STATES DISTRICT COURT JUDGE

-7JUDGMENT PURSUANT TO STIPULATION Case No.: C07-2939 JCS
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